The investigation proceedings were initiated by an official letter (number 233/E4/DICT/CA/17), dated July 31, 2017, signed by the Chief Inspector CESV, Head of the Transnational Criminal Investigation Division of the National Civil Police, in which it is established that he has received information from FBM from the ICE Agency of the American Embassy based in El Salvador; the information was sent to Mr. FBM by email from the Office of National Security of the United States, Immigration and Customs Control based in Guatemala City.
In the report, Mr. FBM., states that on July 19, 2017, the Office of National Security of the United States, Immigration and Customs Control of Guatemala delivered by email to the Office of National Security of the United States, Immigration and Customs Control in El Salvador, a report from the Guatemalan Public Ministry entitled "Information on the ALERTA CENTRO AMERICA Case" and attaches two reports containing an investigation conducted in the Republic of Guatemala on a transnational network that could be involved in the dissemination of child pornography, human trafficking and the production of child pornography in El Salvador.
When carrying out the final count of users within the investigated cases, a total of 13 telephone numbers were found.
Following this information, it was requested to carry out the necessary investigations in order to fully identify the people who are responsible for the crimes of “use of girls, boys, adolescents or people with disabilities in pornography through information and communication technologies” provided for and sanctioned in article 29 of the Special Law against Cyber Crime and Related Crimes and the crime of Trafficking in Persons sanctioned in Art. 54 of the Special Law against Human Trafficking. It was also requested to carry out Investigations to locate and verify the property or buildings where a minor could have been possibly sexually exploited, the logs of the thirteen telephone numbers as well as the location of the antennas and/or their activation, with respect to the thirteen number of telephones that contain the code of El Salvador.
Additionally, in a report delivered on September 7, 2017, in Guatemala City by the Public Ministry of Guatemala, Prosecutor's Office against Trafficking in Persons, it is stated that in the evidence analyzed, images of explicit sexual content were found, showing people who appear to be underage. Therefore, due to the nature of the crime under investigation, and the evidence that more than one person has access to the property from which the child pornography images were downloaded, it is necessary to register all cell phones and computer equipment inside each of the properties, and to seize the material containing images of sexual abuse of girls, boys, and adolescents, if they were found. Consequently, carry out the relevant investigations at the place of registration, in order to scientifically establish who was the person who downloaded said material from the Internet and achieve the full identification of the people who had access to the place where the electronic mass storage devices (i.e. cell phones, desktop and laptop computers, tablets, iPad, USB memory, SD memory, removable hard drives, DVD, cameras and any other electronic device from which pornographic image downloads originated) have been found. All this with the purpose of identifying the users of said equipment.
GuatemalaDafa was sentenced to 2 years in prison for the commission of the crime of acquisition or possession of pornographic material of girls, boys, adolescents or persons with disabilities through the use of information and communication technologies; sanctioned in article 30 of the Special Law against Cyber and Related Crimes.
The Court condemned the defendant to the loss of citizenship rights, for the same period of the duration of the imposed penalties.
The Court absolved Dafa of the payment of the procedural costs, the latter being the responsibility of the State of the Republic of El Salvador, in accordance with art. 181 of the Constitution of the Republic.
The Court replaced the prison sentence by public utility work in favor of the defendant, being in this case 96 working days of public utility.
The present case was known for the crime of “use of girls, boys, adolescents or people with disabilities in pornography through information and communication technologies” sanctioned in article 29 of the Special Law against cyber-crime and related crimes, which establishes the following:
He who by any means that involves the use of information and communication technologies produces, reproduces, distributes, publishes, imports, exports, offers, finances, sells, trades or disseminates in any way, images, videos or exhibits in sexual, erotic or unequivocal activities of a sexual nature, explicit or not, real or simulated, or use the voice of girls, boys, adolescents or people with disabilities, will be punished with imprisonment for 8 to 12 years.
The same sanction will be imposed on anyone who organizes or participates in public or private shows by means of information and communication technologies, in which the people indicated in the previous paragraph are made to participate in pornographic or erotic actions.
However, after the analysis of the case, a change of legal qualification was made, because it could not be established that the defendant had incurred the provisions of art. 29, as there is not enough probative evidence that he will himself use children or adolescents to disseminate material of a pornographic nature, but it could be attributed the behaviors contemplated in article 30 of the aforementioned special law, on the “acquisition or possession of pornographic material of girls, boys, adolescents or persons with disabilities through the use of information and communication technologies”, which establishes the following: Anyone who acquires for himself or for a third party through any means that involves the use of information and communication technologies, or possesses pornographic material in which a girl, boy, adolescent or person with a disability or their image has been used for its production, will be punished with imprisonment of 2 to 5 years .
The same sanction will be applied to those who have, in computer storage devices or through any means that involves the use of information and communication technologies, pornographic material in which a girl, boy, adolescent or person with disabilities, or their image has been used.
The Court declared the accused guilty of committing the crime of “acquisition or possession of pornographic material of girls, boys, adolescents or persons with disabilities through the use of information and communication technologies” provided for and sanctioned in article 30 of the aforementioned special law.
In the registry of investigation carried out inside the house number -----, on the 21st of March of 2018; A positive result was obtained in the search for material containing child pornography on electronic storage devices, which were in the possession of the accused. But the participation of the defendant Dafa in the various groups of WhatsApp could not be determined.
Dafa has participated in the context of an international organized group dedicated to the commercialization and dissemination of child pornography, as established in Article 2 of the United Nations Convention against Organized Crime. However, he could be nothing more than the "final consumer" of the criminal network of child pornography. Therefore, the participation of Dafa was considered minor and the sentence imposed was minimal, and not in the context of organized crime.
TRIBUNAL SEGUNDO DE SENTENCIA DE SANTA TECLA
According to the Court, the place of commission of the act in which the finding of the alleged incriminating evidence was found should be considered. Thus, the Court decided that it is competent to hear this case, since, in accordance with the provisions of Article 57 of the Code of criminal procedure, the judge of the place where the punishable act was committed will be competent to judge the accused. In the present case, by search warrant issued by the Eleventh Court of Peace of San Salvador, on March 21, 2018, apparently incriminating evidence was found in the place of residence of the accused in house number thirty-three, located at (---). In accordance with the provisions of the Judicial Organic Law and the provisions of Arts. 49 and 53 Inc. 1 and 4 of the CCP, this Court decided its material and functional competence to hear the case.
- According to the Court the objects related to the case and which contained child pornographic material, are not at the command of the Court, thus the task of destroying them was entrusted to the Attorney General of the Republic.
- In order to determine whether or not it was child pornography material, it was not necessary for the Court to carry out a morphological study of the victims, it was enough to analyze the images found to know that the portrayed were underage.
- A large part of evidence that has been found in this trial comes from an investigation that was carried out in Guatemala through the intervention of the Embassy of the United States of America.International Cooperation was key to initiate, locate, apprehend and declare Dafa responsible, as a member of the criminal structure.